If you have been a victim of an FDCPA violation, you have a right to bring a claim to recover for the damages caused by that violation. This is not a simple task. There are a lot of moving pieces that must be connected together correctly. You cannot just walk into court and yell "FDCPA Claim!". In an FDCPA claim, you are the plaintiff and the burden of proof is on you.
The Burden of Proof
In every civil matter, someone is shouldered with the burden of proof. This is almost always the plaintiff, at least initially. In some matter types, this can shift but to make this article and it's topic simple, we will just go with the plaintiff always has the burden of proof. The burden of proof is a legal concept that basically means that you have the responsibility of demonstrating to the court that something occured. In the case of an FDCPA claim, you have to show the court that the violation did actually occur and this must be done through legally admissible evidence. Simply saying it did will not be enough. Every item and stage of your case should be influenced by this concept. Not having all the pieces of the puzzle could leave your claim looking "frivolous" in the eyes of hte court and risk an adverse ruling.
The Standard of Proof
Having one or two pieces of evidence might not be enough to be successful. This is because you are not only shouldered with the responsibility of finding and submitting evidence to the court, you also ensure that you have enough evidence to make your claim rise to a standard of certainty. For civil cases, that means your evidence must demonstrate by a "preponderance of the evidence" that the defendant committed the violation. This simply means the evidence suggest that it is more likely than not that the action occured. Contrary to what movies and tv would teach us about court cases, there rarely is a 'smoking gun'. Meaning, most evidence on its own will not be enough to prove your case in isolation. They should be treated as puzzle pieces. You should ensure you have enough puzzle pieces put together so that the court can see the picture. Once you believe you have enough evidence, then you are onto the stage of drafting your complaint and getting it filed.
The Complaint
The complaint is what starts the lawsuit itself. Once filed and served, your case has begun. Although it is the starting point of the case, it is one of the key puzzle pieces. Every complaint will need to adhere to the rules and contain every necessary section. The most important section is the claims section. When you are bringing an FDCPA against a debt collector, you will typically be alleging more than 1. Examples include harassment and misrepresentation of the debt. Even though stautory damages are limited to $1,000 per lawsuit, you shouldn't assume that either will get you there. You should take the time to ensure the complaint and evidence supports both and include both in your complaint.
Getting an Attorney
Getting an attorney is often a choice that results in the best outcome. This is especially true for FDCPA claims. The reason for this is that the FDCPA has a "fee-shifting" provision. This means that the defenndant(the debt collector) carries the responsibility of your attorney's fees. This allows a plaintiff to be able to get an attorney with no out of pocket expenses.
If you would like to speak to an attorney at Starks Law about the possibility of bringing an FDCPA complaint against a debt collector, give us a call. We offer free, no obligation telephone consultations to anyone being harassed by creditors.